Virginia ACLU Sues to Keep Schoolchildren in Masks – Forever

by James C. Sherlock

The ACLU of Virginia is suing under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act in United States District Court in Charlottesville to keep all Virginia school children in masks. Potentially forever.

The lawsuit contends that Governor Youngkin, with his EO making masks optional, “has effectively barred the schoolhouse door” to some kids with disabilities.

A victory for the plaintiffs would make the debate on current Virginia law moot. It would make the expiration of that law on July 31 moot. It could make CDC recommendations moot. Indeed, it could make COVID-19 moot.

Relief — masking for the entire school population — is sought based on the increased vulnerability of one or more kids to pathogens. The plaintiffs plead this is a reasonable accommodation. A decision based on the ADA or Section 506 cannot reasonably be limited to this particular strain of coronavirus.

The wrong decision could make the administrators and teachers, as well as kids, wear masks when any child in a school is deemed by a physician to be more vulnerable than others to any pathogen.

The ACLU argues that “universal mask use may be necessary to protect some children.”

Plaintiffs are students with disabilities that place them at an increased risk of serious illness or death if they contract COVID-19. These disabilities include cancer, cystic fibrosis, moderate to severe asthma, Down syndrome, lung conditions, organ and blood stem cell transplants, diabetes, and weakened immune systems.

It argues that

Executive Order 2 prohibits school districts from providing reasonable modifications (i.e., mask requirements) that Plaintiffs need in order to attend school without risking their health and lives.

Think about it.

Masks for all kids are deemed “reasonable accommodations” to enable kids with disabilities to attend school.

Kids with compromised immune systems and the other tragic illnesses listed are vulnerable in some cases to everything that their bodies are not able to fight off as well as most kids.

The older kids with such disabilities have been going to school with unmasked kids and teachers all of their lives.

Unaddressed in the suit are the dangers to otherwise healthy kids who are forced to wear masks. These have included irritability, headache, difficulty concentrating, less happiness, reluctance to go to school, malaise, drowsiness or fatigue, impaired learning, and impediments to social-emotional interaction and growth.

Masking may inhibit the most important feature of the maturing and socialization process. Covering

…the lower half of the face reduces the ability to communicate, interpret, and mimic the expressions of those with whom we interact. Positive emotions become less recognizable, and negative emotions are amplified. Emotional mimicry, contagion, and emotionality in general are reduced and (thereby) bonding between teachers and learners, group cohesion, and learning – of which emotions are a major driver.

But the ACLU contends that Executive Order 2 forces

…parents of students with disabilities to make an impermissible choice whether to keep their children at home and forfeit their children’s education or risk placing them in an environment that presents a serious risk to their health and safety. The ADA and Section 504 do not permit government officials such as Defendants to force parents to make such a choice.

Where, in that argument, is the offramp?

The plaintiffs do not mention full-time virtual public education as a permissible accommodation for children whose disabilities make pathogens exceptionally dangerous in an in-person school setting. Full-time virtual public education constitutes the only public school option for many kids who are not disabled. OK. Not the plaintiff’s job to bring that up.

COVID-19 certainly cannot be considered the only pathogen that a medical professional will deem a threat to some individual child’s health. If this suit succeeds, it risks requiring only a threat to one child to require masking an entire school.

Senior Judge Norman K. Moon will preside in Charlottesville, a hopeful sign. This suit deserves to lose on the merits. A temporary restraining order is requested, but is not warranted.

The loser will very likely appeal. The case will then find its way to the federal Court of Appeals, which for Virginia cases is the notoriously liberal Fourth in Richmond, and then to the Supreme Court.

I appreciate and support the ADA from family experience. But it cannot mean this. Masking everyone in school represents an unreasonable accommodation.

I expect this suit to lose, ultimately. Ultimately can be a long time.